In The Matter Of The Application For Revocation Of Section 3A Of The Act On Inland Navigation

Original Language Title: ve věci návrhu na zrušení § 3a zákona o vnitrozemské plavbě

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60342&nr=327~2F2005~20Sb.&ft=txt

327/2005 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 28. June 2005 in plenary consisting of the President of the

Paul Rychetského and Franz Duchoně, judges, Vojena Güttlera, Paul

Holländera, Ivana Janů, Dagmar Lastovecké, Jiří Mucha, Jan Musil,

Jiří Nykodýma, Miloslava Excellent and Michaela Židlické on the proposal

a group of Senators Senate of the Parliament of the Czech Republic to repeal section 3a

Act No. 117/1995 Coll., on inland navigation, as amended

regulations,



as follows:



The provisions of § 3a of Act No. 117/1995 Coll., on inland navigation, as amended by

amended, is repealed on the date of publication of this finding in the collection

laws.



Justification



(I).



On 5 July 2004. 5. The Constitutional Court has served 18 Senators Senate

Parliament of the Czech Republic (hereinafter referred to as "appellants") on the repeal of section 3a

Act No. 117/1995 Coll., on inland navigation, as amended

Regulations (hereinafter referred to as the "law on inland navigation") for his conflict with the

article. 1 (1). 1 and article. 2 (2). 1 and 3 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution"), art. 11, 35 and 36 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"), art. 1 of the additional protocol to the Convention on the protection of human

rights and fundamental freedoms, as well as with the contents of the Convention on the conservation of European

of wild flora, wild fauna and natural

habitats, notified under no 107/2001 Coll., m. s. (hereinafter referred to as "the Berne

the Convention ").



The appellants state that the adoption of this Statute has exceeded the

Parliament of the Czech Republic of its position by the legislature, the provision does not

normative in nature and has no relationship to any other normative part of the Act.

This is a preliminary decision on the interpretation of the future in question

individual things. The fact that Parliament decided that particular waterway

It is in the public interest, apply an indefinite legal concept to the specific

the case, which, however, belongs essentially to the Administrative Department, or subsequently

the Court, and this led to violations of the principle of separation of powers. Parliament is not

entitled to in any way to interfere with the Executive, the contested legal

the provisions of the Parliament removed the right to administrative authorities to decide what is

the public interest and for what reason.



The contested provision has, in the opinion of the appellants also in violation of the

the right to judicial review, as it was impossible for the review in the system

administrative justice, whether the administrative authority properly applied an indefinite

the legal concept of the public interest in the particular situation. This question has already

It was resolved by the legislature, with the general courts review

the decision of the public authorities, from the perspective of legality. The plaintiffs in

the above objections refer to the findings of the Constitutional Court, SP. zn. PL.

TC/1/2000 and SP. zn. PL. ÚS 40/02.



The contradiction of the contested provisions with the Berne Convention fro the appellants in

that part of the development and modernization of the waterway to be build

Water works the Middle Deep and Bangalore and a new ferry degree

Přelouč, where animal species protected by the Convention, which

would be the creation of these works. Endangered animal

the species protected by the Bern Convention, in this case the Otter,

Kingfisher, sea eagle, Osprey, Black Stork, Common Sandpiper,

smew, little Ringed Plover, European Beaver, salmon, modrásek

mud, modrásek've been vaccinated, osmoderma eremita, Fire-bellied toad, Toad

Green, European tree frog, Moor frog, frog, frog

Marsh frog, common frog and lizard.



The contested provision exempts specified water route from the protection of

laid down by the Berne Convention. However, this Convention allows certain

exceptions to the protection of fauna and flora, referred to the exemption between

These permitted exceptions.



The plaintiffs also claim that the parliamentary debate follows that

the aim of the contested edit is to give priority to the construction of the waterway before

proprietary right, and the right to protection of the environment, to bypass the

any refusal exception from protection of the environment and to protect the

the shipowner, the shipowner and the building contractor from those who would like to avoid the attention.

The fundamental right to the environment is significantly higher

level than the closer an undefined public interest. In this context,

the appellants refer to the conclusions of the Constitutional Court, SP. zn. Pl. ÚS

35/93. [A collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "collection

the decision "), volume 1, finding no 7; promulgated under no. 49/1994 Coll.].



On the question of the protection of property rights, the appellants refer to the decision of the

The European Court of human rights in the case of Sporrong and Lonnröth in.

Sweden (1982), in which the Court found that a conflict of public interest

with the protection of property rights must be solved in accordance with the principle of

"fair balance". This balancing is but contested provisions

aPriori excluded and dealt with to the detriment of the ownership rights.



II.



The Constitutional Court pursuant to the provisions of § 69 para. 1 Act No. 182/1993 Coll.

as amended by later regulations (hereinafter referred to as the "law on the Constitutional Court")

asked for comments on the proposal submitted by the Chamber of Deputies and the Senate

Parliament of the Czech Republic, as a party to the proceedings.



The President of the Chamber of deputies of the Parliament of the Czech Republic, PhDr. Lubomír

Fort Worth Star Telegram in its observations on the draft stated that the purpose of the provisions of § 3a

the law on inland navigation was to enable a smoother construction of water

the paths in those sections of the Elbe and the Vltava River, which are crucial for the

business in the field of inland navigation. This adjustment does not interfere with the already

ongoing administrative proceedings, but this only applies to edits in the future,

It also does not interfere with the powers of the Executive, which in each

administrative proceedings shall examine the matter separately with the fact that the process of the administrative

It's up to her discretion. The President of the Chamber of Deputies stated that

the law was approved after the completion of the normotvorném process properly was

signed by the respective constitutional officials, and has been duly declared. For this

the State of affairs the President of the Chamber of Deputies expressed the opinion that the

the legislature acted in the belief that the law is adopted in accordance with the

The Constitution, the constitutional order and our rule of law. However, the Constitutional

the Court, in the context of the examination of the application for annulment of the provision of section 3a

the law on inland navigation, to assess the constitutionality of that provision, and

It has issued the decision.



The then Chairman of the Czech Senate doc. JUDr. Petr

Pithart in its observations on the draft stated that the Senate when discussing

the contested amendment originally proposed the exclusion of Fowles prohibitions

established pursuant to the Act on nature and landscape protection, as he saw

inadmissible interference by the legislative power to the Executive. Therefore, it approved the

the deletion of the part of the proposal, which will then still

The Chamber of Deputies. However, in the case of the contested provisions of the Senate majority-

did not find such a violation of constitutional principles, which should lead to its

disapproval. The contested provision does not decide about the preference of certain

activities before the second, i.e., specifically has no development and modernisation

the waterway before the protection of especially protected territories, but elevates the first of

them on the public interest. In the relevant administrative proceedings, therefore, will be

called upon the competent authorities assess which of these public interest has

priority, and under what conditions. Within the meaning of section 43 of Act No. 114/1992 Coll., on the

nature and landscape protection, as amended, exceptions to the

the prohibitions in the specially protected territories may be granted only if

If another public interest substantially outweighs the interest of nature protection.

However, the question of whether the designation of development and modernisation specifically

defined waterways for the public interest is not in conflict with the principle of the Division of

power. Her answer, however, is the Constitutional Court.



The Constitutional Court further requested pursuant to § 48 para. 2 and § 49 paragraph 1. 1 of the law on

The Constitutional Court representation of the Ministry of transport and Ministry of the

environment.



Transport Minister Ing. Milan Šimonovský in its observations to the submitted

the proposal stated that the public interest in the development and modernization of the waterway

referred to in the contested provisions of the law of international commitments

The United States, specifically from the European Agreement on main inland

waterways of international importance (AGN), notified under no 163/1999

SB. (hereinafter referred to as "AGN"). The contested provision concerns the waterways

of international importance, which is included in the AGN, and is completely General and

the operative, as it affects all cases of development and modernization, to

that can occur on all waterways the United States bent

According to the AGN into the water highway E 20. This provision does not interfere with

the individual decisions of administrative bodies in the field of the protection of nature and the

landscape, for the nature conservancy authorities individually decide when another

public interest outweighing interest in nature and landscape protection (section

56 of Act No. 114/1992 Coll., on nature and landscape protection, as amended by

amended). The provision also does not violate any

the provisions of the Berne Convention nor article. 35 of the Charter, since it concerns only

the determination of public interest in the development and modernization of the waterway. From


for these reasons, the Transport Minister suggested that the Constitutional Court

repeal the provisions of § 3a of the Act on inland navigation.



Environment Minister Libor Ambrozek RNDr. to design delivered by the

pointed out that the contested provision modifies the specific thing, which is in violation of the

with the requirement of the universality of the law. The maintenance of the waterway lies partly in the

Labské pískovce protected landscape area and this is the future of the territory

NATURA 2000, which will be launched according to the criteria of Council Directives 92/43/EEC

and 79/409/EEC. In the opinion of the Minister of the environment cannot be at a flat rate

provide that the development and modernization of the waterway is always the reason for

the granting of exceptions, and such treatment is in violation of the cited guidelines.

In the case of the Berne Convention expressed by the Minister for the environment

doubts as to whether this Convention are among the international agreements within the meaning of

article. 10 of the Constitution, as it has not been ratified by the Parliament of the Czech Republic.

However, it was validly negotiated and the authorities of the United States are

bound to it. Derogation from the obligations set out in the Berne Convention can be enabled only

an individual legal act, and not at a flat rate by law. The Minister

the environment, therefore, expressed with the proposal of the Group of Senators on the

annulment of the contested provisions of the agreement.



III.



The parties were asked to agree to the statement under the provisions of

§ 44 para. 2 of the Act on the Constitutional Court with the abandonment of the oral proceedings,

and note, were alerted to the fact that if in

the specified period does not respond, it will be his consent within the meaning of § 101 paragraph. 4

Code of civil procedure envisaged. The legal representative of the appellants and

the President of the Senate of the Parliament of the Czech Republic with the consent of

the oral proceedings have expressed, the Chamber of deputies of the Czech Parliament

the Republic has sent a request to its observations.



IV.



The Constitutional Court in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

the Court examined whether the Act, whose provisions is assessed in terms of

constitutionality, was accepted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



Of Council publications and těsnopiseckých reports, as well as the observations of the

Parties to the proceedings, the Constitutional Court found that the Chamber of Deputies approved the

the Government draft amendment to the law on inland navigation, including the newly inserted

the provisions of § 3a according to house the press No 343/0 on their 23. a meeting on

12.12. 2003 the necessary majority of votes of members when a quorum of 70

members of Parliament for the adoption of the proposal and voted against the adoption of the proposal 82 25

members of Parliament. The Bill was referred to the Senate, which it discussed the day

21.1. 2004 on its 13. meeting and resolution No. 338 of the returned

the House with amendments (when a quorum of 28 senators voted for

return of the House of representatives proposal 37 senators voted 7

Senators).



The Chamber of Deputies returned the Bill again as the Council discussed

print no. 343/5 and no 343/6 and vote on it at their 27. meeting on 20 April. 2

2004. the quorum for adoption of the proposal 94 members of the Act, as amended by

approved by the Senate voted 140 members and against the acceptance of the proposal 7

members of Parliament. After the amendment to the Act on inland navigation signed

constitutional factors and duly promulgated in the collection of laws on the amount of 39 under

No 118/2004 Coll.; the effectiveness of acquired on the date of the accession treaty

The Czech Republic to the European Union enters into force (i.e., on 1 May 2004).

The amendment to the law on inland navigation so constitutionally was received

in the prescribed manner and within the limits of the Constitution set out competences

compliance with the rules laid down in article 4(1). paragraph 39. 1 and 2 of the Constitution.



The Constitutional Court notes that the proposal meets all the conditions laid down in

the law on the Constitutional Court and nothing prevents its discussion of the Constitutional Chamber

the Court.



In the.



For completeness it should be noted that the contested provision was in the Government

the draft amendment to the Act inserted the amendment contained in the resolution

the Economic Committee of the House of no 155 of its 23. the meeting,

made of 3 October. 12.2003. In the bill approved by the Chamber

the Chamber of Deputies on 12 December 2003. 12.2003 (print no 343/4) sounded the provisions of §

3A as follows:



' section 3a



Development and modernization of the waterway as defined by the Elbe River watercourse

km 129.1 (Pardubice), on the border with the Federal Republic of Germany

and water flow of the Vltava River from RKM 91.5 (score from 19 reviews), including

channel Vraňany-Hořín after the confluence with the Elbe water including výústní

part of the water flow of the Berounka river after the port of Radotín, is in the public interest.

If the waterway is located in the protected area, in particular on the activities of the

related to its development and modernisation of the prohibitions laid down by the

special legal regulation ^ 1a) do not apply.

1A) Act No. 114/1992 Coll., on nature and landscape protection, as amended. "



The amendment, which the Senate approved on 21 February 2006. 1.2004, demanded the

discard in the second sentence of paragraph 3a, including the footnotes.

1A). as already indicated above, the Chamber of deputies of the Senate

the proposal adopted.



The contested provisions, as amended, contains this text:



' section 3a



Development and modernization of the waterway as defined by the Elbe River watercourse

km 129.1 (Pardubice), on the border with the Federal Republic of Germany

and water flow of the Vltava River from RKM 91.5 (score from 19 reviews), including

channel Vraňany-Hořín after the confluence with the Elbe water including výústní

part of the water flow of the Berounka river after the port of Radotín, is in the public interest. "



Vi.



The Constitutional Court considered the proposal to repeal the provisions of § 3a

the law on inland navigation and considers that this proposal is reasonable.

The contested provision is unconstitutional, because it has been violated

the principle of the separation of powers enshrined in the article. 2 (2). 1 of the Constitution. By

Parliament in the Act marked the development and modernisation of specific waterways

for the public interest, to comply with the requirement of universality, the legal act, and

vague legal term applied in a particular case, and to

powers conferred on the Executive.



The Constitutional Court in many of its decisions repeatedly expressed to the request

the generality of legislation. In finding SP. zn. PL 55/2000 (collection

the decision, Volume 22, finding no. 62; promulgated under no. 241/2001 Coll.)

He stated the following:



«To the fundamental principles of the legal state of the material belongs to the maxima

universality of legal regulation (requirement of universality of law, respectively.

the generality of legislation). Universality of the content is an ideal, typical

and the essential character of the law (and the law), and in

relation to the court decisions, Government and acts of the administration. The purpose of the distribution

State power in the legislative, Executive and judicial is entrusting the General

and initial power regulation of State legislation, derived General

power regulation and decisions on individual cases, manage and

exclusively only deciding individual cases, the judiciary. From

referred to the definition of the concept of the definition of the character of the law (or legal

prescription) is then based on the concept of law (law) in the material

the meaning of which differentiate laws (legislation) within the meaning of

the formal. If the laws in the sense of formal legislative acts

authority, that this "enables, where appropriate, approves a particular

measures of executive bodies (the State budget, state contracts, etc.) "

and "the traditional doctrine considers that statutory authority in such

cases be issued-in the form of laws-administrative acts "(f. Weyr,

The Czechoslovak constitutional law, Prague 1937, p. 37), sometimes by legal

provisions within the meaning of the formal (and not the material) are legal

regulations issued by the Government, ministries and other administrative bodies

set out the legal position accurately individualised (marked)

subjects. However in the form of a source of law (law)

its contents are, therefore, the application of the law.»



The arguments for the generality of law the Constitutional Court analysed in

finding SP. zn. PL 12/02 (ECR, volume 29, finding no. 20;

promulgated under no. 83/2003 Coll.), in which mj. said:



«In the subject matter to be but these aspects relate to the assessment of

the law, which regulates the unique case, which therefore differs from

one of the fundamental character of the concept of law, material which is universality.

Recall that the requirement of the universality of the law is an important part of

the principle of the Dominion Act, and also the rule of law. ... Special

the argument against the laws relating to the unique cases, the principle of

the separation of powers, or the odčlenění legislative, Executive and judicial power in the

a democratic legal state of ... Article. I, section 9 of the US Constitution in this

the context provided: "no law shall be issued, containing

He was a court judgment. "»



The provisions of § 3a of the Act on inland navigation provides that the development and

modernization of the specifically defined waterways is in the public interest.

Undoubtedly, therefore, modifies a unique case, and meet him so substantial

the material character legal standards, which is universality. The material is therefore

This is not about the law, but the contested provision is the de facto

an individual legal Act (cf.. In the theory of law., Knapp, Prague, 1995,

p. 149-150). The Constitutional Court to assess whether this fact

establishing the unconstitutionality of the contested provisions.




Since the contested provision was inserted in the draft amendment to the Act

amendment to the proposal in the course of discussion by the

the Chamber of Deputies, there is it explanatory memorandum and its specific purpose and

the target can only be estimated. However, it is clear that the contested provision

tracks to facilitate the development and modernization of the specifically defined waterways.

Demonstrate the public interest it is necessary in the event of expropriation or

the forced restriction of ownership rights under art. 11 (1) 4 of the Charter and on the

the provisions of § 108 connecting them to Act No. 50/1976 Coll., on the territorial

planning and building code (the building Act), as amended

regulations. Having regard to the original text of the contested provision is also

also appropriate to cite the provisions of § 43 of Act No. 114/1992 Coll., on the protection of

nature and landscape, as amended: "exceptions to the prohibition in

specially protected territories according to § 16, § 26, § 29, § 34, § 35 para. 2,

§ 36 odst. 2, § 45 h and 45i in cases where public interest in significantly

outweighs the interest of nature protection permits in each individual

the case of its decision to the Government ".



The contested provisions of § 3a of the Act on inland navigation disqualifies

to the administrative authority in the administrative procedure to detect the public interest in the development of

and modernisation of the waterways in question, since this is already specified by the

by law. Such a solution, IE. declaring the public interest in the particular

specific law, the Constitutional Court shall be deemed to be unconstitutional.



The question of public interest, the Constitutional Court dealt with e.g.. in finding SP. zn.

I. TC 198/95 (ECR, volume 5, finding no. 23), in which mj.

said:



«It cannot be overlooked that not every collective interest can be described as

public interest in the company to preserve the unauthorized construction. In this

the context can be inferred that the concept of "public interest" is to be understood

as such, the interest which could be described as a general or generally

beneficial interest. The question of general interest dealing with eg. F. a. Hayek in

the publication "Law, legislation and liberty", II. piece (released ACADEMIA

Prague, 1991), at page 14. The author states that "often mistakenly suggests

that all collective interests are general interests of the society; However, in the

in many cases it may be satisfying the collective interests of certain groups

with the general interests of the society in complete violation of. The whole history of development

democratic institutions are the history of the struggle for that individual

prevent abuse of government groups in favour of the collective interests of

These groups. " It is therefore necessary, in order to limit ownership rights

only after careful consideration of the basic conditions, whether the restriction is

must be in the public interest.»



The public interest in a particular case is determined during the administrative procedure

based on the measurement of various vested interests, after considering

all the contradictions and comments. Of the reasons for the decision, which the Central

the point is the question of the existence of public interest, then it must clearly indicate

why public interest outweighed by a range of private, vested interests.

The public interest is to be found in the process of deciding on the specific question

(typically, such as expropriation) and cannot be in a particular case, a priori

fix. For these reasons, the public interest in a particular discovery

the event typically the powers of the Executive, not the legislative.



The contested provisions of the Act could not be determined, the reasons for

the legislature acknowledged the development and modernisation of the specifically defined water

the path of the status of public interest whether he found any conflicting interests

and as with their existence. It is clear that these

circumstances or unable to, as the legislative process is not equipped with a

resources for the examination of individual cases with all their

context and consequences.



The relationship between the Executive and legislative powers was dealing with the Constitutional Court in the

finding SP. zn. PL 1/2000 (collection of decisions, volume 18, finding no. 51;

promulgated under no. 107/2000 Coll.), in which he stated:



"This system (note. national committees) has been replaced by the rule of law,

based on the separation of State powers: legislative, Executive and judicial, in which

The Parliament of the United Kingdom, consisting of the Chamber of Deputies and the Senate, has

only the power of legislative, and any executive or the jurisdiction of the

lacks. Only the Executive power to the Chamber of Deputies consists of

prosecute their members to disciplinary punishment options and make decisions to consent to the

their prosecution; Furthermore, the function shall be exercised by nezákonodárné

of options to set up the Inquiry Commission for the investigation of things

public interest and options to interrogate the Government and its members. Do not therefore

The Chamber of Deputies however to the Executive and to the Government to intervene,

with the exception of initiative or recommendation, etc. "



By the contested provision, not only for the intervention of the legislative power to be able to

It was powerful, but limited the right to judicial review. Any

administrative decisions (e.g. on expropriation), made in the context of the

the construction and modernization of the waterway, will

subject to review by the Court in the context of the administrative judiciary, but out of this

the review will be excluded the question of the existence of public interest, as it is

already established by law, which are the general courts pursuant to article 95 para. 1

The Constitution bound. In the absence of the contested provisions, General

the courts may have to examine whether the administrative authorities in the application of fundamental theorems

the legal concept of "public interest" in a particular situation does not exceed the law

set out the limits of administrative discretion (cf. § 78 para. 1 of the code of civil procedure

administrative); This, however, the impugned legislation is de facto excluded.



The question of the exclusion of judicial review in the case of individual legal

Regulation dealt with the Constitutional Court in finding SP. zn. PL. ÚS 40/02 (collection

the decision, volume 30, finding no. 88; promulgated under no. 199/2003 Coll.), in

which mj. said:



"Individual control that is contained in a legal act depriving the addressees of the

the possibility of judicial review of the fulfillment of the General conditions of the operative adjustment

for a particular body, which meets a transparent and acceptable

justification in relation to the regulation of General options, please be

for rozpornou with the principle of the rule of law (article 1 of the Constitution), which is

the immanent power-sharing and judicial protection of rights (article 81, and 90 of the Constitution). ".



Although the judicial review of the contested provision does not completely eliminated, it is

its limitations so serious that the conclusions expressed in the cited award

fully turn out even on the case.



Given the above arguments has the Constitutional Court considered that the contested

the provisions of § 3a of the Act on inland navigation is incompatible with the principles of

the rule of law, in particular with the principle of separation of powers, and is in breach of article. 1,

article. 2 (2). 1 and 3, article. 81 and article. 90 of the Constitution, and also article. 36 of the Charter. From

the perspective outlined constitutional technique, therefore, appears to be an application for revocation

the provisions of § 3a of the Act on inland navigation reason.



Therefore, the Constitutional Court of the provision of section 3a of the Act on inland navigation referred to in §

70 paragraph 1. 1 of the law on the Constitutional Court to annul it.



Having regard to these reasons, which led to the annulment of the contested provisions

the law, the Constitutional Court has already closer to the other in respect of objections did not deal

infringement of the Berne Convention, which contained a proposal.



The present legal ramifications and all the factual circumstances of the case

were sufficiently zřejmy of documentary materials. Since the oral

the negotiations could not be expected further clarification of the matter, the Constitutional Court is

the consent of the participants dropped according to § 44 para. 2 of the Act on the Constitutional Court.



The President of the Constitutional Court:



JUDr. Rychetský in r.